Category Archives: Litigation

Over many decades, the United States and Canada have developed what is now the largest trade relationship in the world. This achievement is measured by the goods and money that cross their shared border, and does not even account for the trade of ideas and exchange of information currently underway between the two countries. The linkage of the California and Quebec carbon markets is yet another demonstration of the mutually beneficial relationship that these neighboring countries have cultivated. The two jurisdictions are taking the final steps in what started off as a virtual marketplace of ideas and best practices and has since grown into a real market for tradable carbon credits.

Last Thursday, the California Air Resources Board (CARB) and Ministry of Sustainable Development, Environment and the Fight against Climate Change (MDDELCC) of Quebec held a practice joint auction for the linked California and Quebec cap-and-trade programs. This trial was run as though it were a real quarterly auction, requiring participants to establish a Compliance Instrument TrackingSystem Service (CITSS) account if they did not already have one, submit an application to participate, and await approval from the auction administrator. CARB and MDDLECC published an auction notice and ran webinars for auction participants in the days leading up to the practice auction. The auction administrator and independent market monitor for both jurisdictions also monitored the auction while the bidding window was open and the appropriate help desks were available to take questions, just as they would have for a real auction. As such, interested parties were able to become familiar with the actual processes and materials required to participate, as well as test out and provide feedback on the updated features of the auction platform, which was refined to support bidding from both jurisdictions. The careful completion of this important exercise demonstrates CARB and MDDELCC’s dedication to thoroughness in their implementation of the cap-and-trade regulation. Read More »

On this 4th of July week, a time of celebratory fireworks and barbeques, Americans commemorate our country’s hard-fought independence from colonial oppression. Americans are again working for greater independence, this time from fossil fuels that threaten our health, economic prosperity, and future. This week California won a pivotal legal challenge on this front.

Source: Flickr/johnkay

Just three days ago, the U.S. Supreme Court refused to review a 9th Circuit Court of Appeals decision upholding California’s Low Carbon Fuel Standard (LCFS). The Rocky Mountain Farmer’s Union and the American Fuel and Petrochemical Manufacturers were seeking to overturn the sound and well-reasoned decision from the 9th Circuit. The High Court’s refusal affirms the legality of a vital policy that decreases our reliance on foreign oil by promoting alternative sources of energy while reducing climate and air pollution from our vehicles.

Yesterday, the Environmental Defense Fund, the Natural Resources Defense Council, the Sierra Club and the Conservation Law Foundation filed a brief in opposition to March 2014 petitions for Supreme Court review in American Fuel & Petrochemical Manufacturers Association v. Corey and Rocky Mountain Farmers Union v. Corey, casesin which oil and ethanol companies attack the constitutionality of California’s Low Carbon Fuel Standard (LCFS).

The LCFS, adopted under California’s trail blazing Global Warming Solutions Act, is a central contributor in the effort to move the transportation system away from the current paradigm of unsustainable global warming pollution, foreign energy dependence, and community-choking air pollution. The LCFS works by putting market incentives in place that encourage the production and use of low carbon fuels that were not prevalent when the program went into effect. It is projected to reduce greenhouse gas emissions from California’s use of transportation fuels by 16 million metric tons per year by 2020.

As we have explained in prior posts here and here about this important case, the challengers in the litigation have argued that the LCFS discriminates against ethanol and oil coming from outside of California and that it attempts to regulate actions occurring outside the state in violation of the U.S. Constitution's Dormant Commerce Clause. A panel of the United States Court of Appeals for the Ninth Circuit rejected these arguments in September 2013. In their March 2014 petitions, the industry challengers seek Supreme Court review of the appeals court’s decision. The Supreme Court’s decision on whether to take the case could come as early as late June. Read More »

Last week, we saw a big win for California's Low Carbon Fuel Standard (LCFS) – a regulation to diversify the state’s fuel mix with lower carbon sources of energy. After almost a year of deliberation, the United States 9th Circuit Court of Appeals filed a decision in the case Rocky Mountain Farmers Union, et al. v. Corey, in favor of California.

In its 79-page decision, the Court addressed two major constitutional issues: 1) whether the LCFS was invalid because it directly regulated wholly out-of-state ethanol producers (extraterritoriality); and 2) whether the LCFS was invalid because it impermissibly discriminated against out-of-state producers based solely on origin, thereby violating the Commerce Clause. The court overturned a District Court ruling on both grounds, finding that the state can move forward with the LCFS unimpeded. Of course, the ruling is only a temporary win for California, as additional legal process at the District court — and possibly U.S. Supreme Court — is forthcoming.

Although not required to do so, the Court of Appeals went to great lengths to recognize the importance of California’s leadership in developing and implementing environmental policy. The Court said it did not wish to “block California from developing this innovative, nondiscriminatory regulation to impede global warming… [as] it will help ease California’s climate risks and inform other states as they attempt to confront similar challenges.”

These words of support for the LCFS and California’s leadership are supported by tremendous growth in alternative fuels industries like California biodiesel, and also by analysis that shows fuel diversification can yield long-term price reductions at the pump. The 9th Circuit's decision which allows these trends to continue is not just a win for the state in a long legal battle, but also a win for California’s consumers and environment.

Last Friday, California companies participated in the fourth cap-and-trade auction since the program’s historic opening in November 2012. The results of this auction will be made public on Wednesday, but even without the exact numbers, the program’s previous success is proving the carbon market won’t be going anywhere anytime soon. Just look at the scoreboard so far and you’ll see California’s economy is rebounding. And, despite efforts by the program’s opponents to shut down the program, every auction to date has seen strong and diverse bidder participation, complete sale of current allowances, and steady demand for future allowances.

This shouldn't come as a surprise, given California’s successful, albeit brief, history of cap-and-trade. On the eve of the first auction, the California Chamber of Commerce filed a lawsuit to invalidate the auctions and spark doubt in the minds of the auction participants. However, this underhanded ploy was unable to achieve what it had intended, and the auction went off smoothly.

Similarly, just before the third auction last May — and on the same day as the release of the state’s plan for program expansion –Pacific Legal Foundation strategically filed a similar lawsuit on behalf of a handful of companies attempting to block the auctions. This once again did nothing to thwart the program’s success. Every current allowance was purchased come auction time at a settlement price an impressive 31% above the floor price. Almost 80% of the future allowances were also purchased, indicating the overall belief that the litigation brought against the program had no validity.

Since the third auction, the secondary market (for future sales of) carbon allowances has remained relatively stable. While there might be a bearish tone to this week’s auction with regard to price of allowances, we remain quite bullish with regard to the main goal of the program, which is to reduce carbon emissions in the most cost-effective way possible. This is happening. The program’s ambitious cap is in place, companies are already finding ways to reduce emissions, and the fact they can do it while paying around $14 per permit is also telling. It means they can grow their business without producing so much carbon that they need to surrender more allowances.

The continual success of the cap-and-trade program is evidence of a well-constructed, strong, and adaptive policy that will undoubtedly continue to achieve the ultimate goal of curbing California’s carbon pollution while growing the California economy. The carbon market naysayers have long made claims that this program would increase the cost of business in California, decrease the number of jobs, and lead to economic disaster. But we’re seeing just the opposite. According to an analysis published by Bloomberg early last week, California’s economy is experiencing sustained and promising growth, prodded on by a strengthening housing market and decreasing unemployment rate. In June alone, more than 30,000 new jobs were created in the state, the largest increase for that month in the entire country. In the past 12 months, the unemployment rate in California has fallen by 2.1 percentage points, outpacing the rest of the country by a factor of more than three.

During nine of those months, the state has been regulated under the cap-and-trade program. It is clear that arguments mounted against the policy claiming negative repercussions on the state’s economy are completely unfounded.

California is leading the country in the number of green jobs up and down the state, from Orange County to San Joaquin County. As we await the results of the fourth auction, we can cite this data and be confident in a viable and efficient carbon market that’s helping to make California stronger than ever.

Arguing that California’s cap-and-trade program doesn’t need to auction carbon allowances is like arguing that the ocean doesn’t need whales or that America doesn’t need bald eagles. This is essentially what the California Chamber of Commerce and the Pacific Legal Foundation are arguing in a series of lawsuits against the Air Resources Board. On Tuesday EDF and the Natural Resources Defense Council filed a brief with the Sacramento Superior Court pointing out just how ridiculous this argument is.

Like whales and bald eagles, auctions are quickly becoming a popular part of the cap-and-trade program because of the many environmental, health, and economic benefits that can come from investing auction proceeds to reduce GHGs. But just as whales don’t exist because people think they are cute, auctions are not part of the cap-and-trade program because the public thinks they’re cool (although they are and people do). If whales suddenly went extinct there may be a few (fishy) beneficiaries but the whole ocean ecosystem would be thrown off kilter. Like the whale, the auction is an integral part of a cohesive, functioning system for reducing climate change pollution.

Source: Flickr

Half of Plaintiffs argument is that AB 32 did not give ARB the authority to hold auctions under a cap-and-trade program when it gave them the authority to design a program to reduce GHG pollution to 1990 levels by 2020. They argue that ARB doesn’t need to auction allowances in order meet this target. But what they ignore is that ARB is supposed to meet this target while protecting low-income communities, maximizing total benefits to California, encouraging early pollution reductions, promoting equity, and encouraging cost-effective reductions. Auctions help California achieve all of these goals.

The other half of Plaintiffs argument is that the auction of carbon allowances is an illegal tax on businesses. Interestingly they argue this not by comparing the auction to a tax and showing overwhelming similarities but instead by setting up a straw man that they can more easily shoot down. To continue the whale analogy, it’s as if a scientist discovered a whale for the very first time. The scientist really, really wants the whale to be a fish. But instead of looking at whether whales have scales and are cold blooded, the scientist just says “well, it’s not a seal so it must be a fish”. In our brief we take a more direct approach and lay out at least five reasons why auctions are different than taxes. Just for starters, have you ever heard of a tax that people volunteer to pay? Because as many as 12% of the participants in each auction have been buyers who have absolutely no obligation to turn over allowances under the cap-and-trade program.

Speaking of whales and bald eagles, some of the Plaintiffs in this case are no stranger to trying to drive them extinct. The Pacific Legal Foundation which is representing some of the plaintiffs was a longtime proponent of DDT which nearly wiped out America’s bald eagles.